COMPARATIVE CONSTITUTIONAL RIGHTS INTERNAL-I

ANAND AMIT 1261-9‘B’

INDIA

The Impugned legislation under Art.25 allows an individual the freedom to practice their religion
or religious practice without any unfettered checks from any individual or organization but at the
same time by virtue of Art.26 it makes this freedom subject to public order, morality and health. 1
In the given proposition, healthy well-being of the minors is severely jeopardized by the
religious practice which is followed by the Kalsa community. In the case of Kantaru Rajeevaru
v. Indian Young Lawyers Association and Ors 2 the SC held that where it cannot be conclusively
proved about the purpose for existence of a particular religious practice the same cannot be
accepted as an essential part of the religion. It further stated that this religious practice should
also pass the test of reasonableness under Art.14. Clause (1) of article 25 of the Indian
constitution declares that the exercise of religious freedom is subject to other fundamental rights
guaranteed in part III of the Constitution. A constitutional question to this effect arose for the
first time in 1958 in the case of Shri Venkatarama Devaru v. State of Mysore.3
In the given proposition, the religious practice of Kalsa community will not stand the test of
morality as enshrined under Art.26 with reasonableness under Art.14; with the power that flows
from Art.15 of the Impugned legislation, the state is empowered to make laws for the welfare of
children and the schedule tribes. In Mohammad Hanif Quareshi v. State of Bihar4, the SC held
that the religious practice under question should not only be “enjoined or sanctioned” by one’s
religion but it must also be “an obligatory overt act” of the concerned religion to exhibit its tenet.
In another case5 the Supreme Court of India ruled that article 25 of the Constitution guaranteed
to every person freedom of religion, but the Court emphasized on the limitation put forth by
Art.26. The burden is upon the Kalsa community to prove that their act, in the name of religion,
is an integral practice and not a mere religious sanction.
USA
The rights related to Religion is protected through First Amendment and Fourteenth Amendment
which, work together to guarantee religious freedom and rights to citizens but at the same time
through Fourteenth Amendment upholds the supremacy of federal laws. While there have not
been many legal tests of the “free-exercise” clause, existing precedence has generally held
federal law superior to religious practice. Reynolds v. United States (1878) and Employment
Division v. Smith (1990) can be used to argue that the free-exercise clause has a rather narrow
application, a concurring opinion in Smith by Justice Sandra Day O’Connor applied the test of
“compelling government interest.” She argued that the government can only infringe on religious
1
Tejsingh v. The State, AIR 1958 Raj 169 (DB).
2
MANU/SC/1565/2019
3
AIR 1958 SC 255
4
AIR 1958 SC 731
5
Ratilal Panachand Gandhi v. State of Bombay, AIR 1954 SC 388.
liberty when a compelling interest exists to do so.6 Sherbert Test was formulated in 1963 which
was overruled by Smith(1990). Federal statutes, including the Religious Freedom Restoration
Act of 1993 (“RFRA”), support that protection, broadly defining the exercise of religion to
encompass all aspects of observance and practice, whether or not central to, or required by, a
particular religious faith. In the given proposition the State has to demonstrate a compelling
interest and show that it has adopted the least restrictive means of achieving that interest. In the
given proposition the federal law will prevail over the religious practice of Kalsa community.
South Africa
The 1996 Constitution guarantees equality of everyone before the law and the right to equal
protection and benefit of the laws subject to remedial action "to protect or advance persons, or
categories of persons, disadvantaged by unfair discrimination." The Constitution likewise
prohibits unfair discrimination, directly or indirectly, by the State, as well as by any other person,
based on race, gender, sex, pregnancy, marital status, ethnic or social origin, color, sexual
orientation, age, disability, religion, conscience, belief, culture, language, birth, or other similar
grounds.7The right to self-determination is not absolute but must be exercised in a manner that is
consistent with the principles enunciated in the Bill of Rights. 8 A Bill to consolidate and expand
the laws dealing specifically with children is currently under advisement. 9 A lengthy section in
the Bill enumerates circumstances that must be taken into account in establishing the best
interests of the child, and those circumstances include "the need for a child to be brought up
within a stable family environment and, where this is not possible, in an environment resembling
as closely as possible a caring family environment."
The exercise of parental rights is subject to limitations dictated in general by the best interests of
the child. Withholding medication or therapeutic treatment from a child for religious reasons,10 or
claiming the sanction of Biblical texts instructing parents to apply "the rod of correction" for
corporal punishment that exceeds the bounds of moderate chastisement, cannot be legitimized
under pretenses of parental authority and the State has a duty to step in to prevent, counteract,
and punish such abuses.
Under the impugned legislation, the law is presumed to be unfair unless proved otherwise as per
Sec.14 of the Equality Act. The state has the burden to prove that law is fair and not the applicant
since the law is made on the grounds mentioned under Sec.9. It further allows the state to make
laws for protecting anyone who is facing unfair discrimination. Therefore, in the light of
impugned legislation was enacted and it meets the test of fairness and if this law is challenged,
the state has to prove the fairness of it.

6
Lamb's Chapel v. Center Moriches Union Free School District, 113 S. Ct. 2141 (1993); Frazee v. Illinois
Department of Employment Security 489 U.S. 829 (1989).
7
Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 s.1, para. (a) (S. Aft.)
8
S. AFR. CONST. 1996, § 31(2); Prince v. President, Cape Law Soc'y 2002 (2) SA 794 (CC) at 800 (S. Afr.); State
v. Williams 1995 (3) SA 632 (CC) at 648 (S. Afr.)
9
Children's Bill, 2003, Bill 70-2003, enacted as Children's Act at 38 of 2005.
10
Hay v. B 2003 (3) SA 492 (W) (S. Aft.) (overruling a decision of the parents who, for religious reasons, would not
give their consent for their child to receive a blood transfusion considered by a pediatrician to be necessary for the
survival of the child).